In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before. They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city. The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations. There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)). And yet, no one is protecting the 18,000 people trapped in al-Yarmouk. No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself. The Geneva Convention is designed to deal with states. Neither ISIS nor Nusra Front is a state. Therefore, neither feels bound to protect the civilians in al-Yarmouk. It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle. While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern. So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect. Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary. If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives. But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to? If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis? Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death? Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers. Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation. If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law. She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

Panalists Dr. Paul Williams, a Professor at American University, Lt. Col. Rachel VanLandingham of the United States Air Force, and Dr. Robert Hazan, a Professor at Metropolitan State College of Denver discussed the international and U.S. policy implications of the Arab Spring in a late afternoon panel of the Sutton Colloquium. Dr. Williams started off the discussion with remarks about the U.N Security Council Resolution 1973 (“Resolution 1973”) that allowed for a no-fly zone over Lybia and authorized all necessary measures to protect civilians. Dr. Williams compared Resolution 1973 to previous unsatisfactory action taken in Bosnia, Darfur and Rwanda. Unlike previous humanitarian intervention efforts, Resolution 1973 could serve as a clear legal blueprint for future humanitarian intervention.

Barack Obama & the Arab Spring

Lt. Col. VanLandingham noted that Resolution 1973 strengthened the view that abuses in one country can affect global security and underscored the willingness of states to intervene to protect civilians. She also stated that although Resolution 1973 was not a “reigning vindication” of the Responsibility to Protect Doctrine (“R2P”), it brought the doctrine closer to a binding legal norm. Dr. Hazan stressed the importance of the U.S. and other like-minded nations being part of the humanitarian movement. However, he also cautioned that now is the time for states to engage in active discussions regard humanitarian intervention. Given the current state of the global economy states may find it more difficult to provide humanitarian aid in the future.

This cautionary language begs the question: how should a state balance the needs of its own citizens with the Responsibility to Protect and humanitarian aid and intervention. As mentioned by Dr. Hazan, as the economic state of the Eurozone worsens and the U.S. economy continues in its state of instability, international humanitarian aid may take a backseat to domestic concerns. By way of example, several U.S. polls found that a majority of Americans favor cutting foreign aid over other spending cuts. It should be noted, however, that the percentage of the budget that is spent on foreign aid is miniscule in comparison to the expenditures such as healthcare and defense.

Resolution 1973 arguably brought R2P closer to a binding legal norm, however, R2P is a narrow doctrine limited to mass atrocities and implemented multi-laterally, i.e. via a Security Council Resolution. In its international sense, R2P focuses on the responsibility of States to halt and prevent “mass atrocity crimes” (war crimes, crimes against humanity, ethnic cleansing and crimes against humanity). If the situation in a state does not rise to the level of a mass atrocity, assisting States may not be as likely to intervene absent a Security Council Resolution or other political pressure. States, however, should be cautious about withholding humanitarian aid in light of the notion that, as noted by Lt. Col. VanLandingham, abuses in one country can certainly impact global security. Regardless of whether a state’s citizens are put in immediate danger, it should not sit idly by while abuses are committed in a foreign state.

Edward C. Luck, United Nations Assistant Secretary General, spoke at the Sutton Colloquium about the responsibility to protect and the effect of the Arab Spring on R2P. A central theme of Professor Luck’s discourse was that R2P is a political, as opposed to a legal, concept. With all due respect to Professor Luck, whose work’s value to the international community cannot be overstated, he is both empirically and normatively incorrect when he suggests that R2P is purely political.

Edward Luck

According to Professor Luck, R2P adds nothing to international law. It is a political concept with a political following that works not because it is legally binding, but because there is a perception among policymakers that the public cares about it. This claim is empirically false. The three components of R2P are: 1) states have the primary responsibility to protect its citizens from atrocities; 2) there is a parallel obligation of third party states to assist states under stress; and 3) any of the tools under Chapter 6 of the UN Charter are available to the international community to remedy failures by states to live up to its obligations. Taken alone, these three pillars are neither new nor particularly exciting, as state primacy, foreign aid, and humanitarian intervention are already mainstays of the modern human rights regime. R2P is exciting as a development only to the extent that it is evidence of state practice explicitly suggesting qualified sovereignty. The concept of sovereignty is an inherently legal one, and changes to the concept of sovereignty are properly seen as legal changes. R2P is nothing more than a semantic label at the political level. It is only novel when thought of in the legal context.

In addition to his empirical claim, Professor Luck advances the normative argument that R2P is more effective as a political concept than a legal one. This normative claim is overly formalistic. The benefit of R2P as a legal concept is that legal status confers upon the concept definite contents. An international court could clearly indicate whether or not a legal concept had been properly invoked. As a political concept, however, R2P becomes little more than a slogan that could be just as easily invoked unilaterally as through the Security Council. Professor Luck would point out that invocation through the Security Council is an essential element of R2P and unilateral invocation, by definition, would remove any state action from the realm of R2P. This is where formalism comes in and Professor Luck’s argument falls short. If R2P is nothing but a political concept, its contents are shaped solely by political actors making political decisions. In the world of the internet and the twenty-four hour news cycle, the court of public opinion, not the United Nations, is the final arbiter of political decisions. If it is a purely political norm, R2P is destined to become whatever individual states make of it.

Rather than attempting to fit the square peg of R2P into the round hold of Westphalian sovereignty by writing it off as a purely political concept, we should be using the emergence of the norm to have a forthright legal discussion about the degree to which the international community has changed and the need for the law to change with it. If R2P is but a political concept, it will be taken over and irreversibly damaged by political actors before it can be introduced as a workable norm of international law.

A few weeks ago, Professor Ved Nanda posted on the significance of the Libya conflict for the concept of R2P. This entry takes issue with with Professor Nanda’s comment that “time will tell whether NATO by overstepping its mandate in Libya may have damaged the concept”, and instead argues that R2P in its current form has been damaged beyond repair, never to be utilised again. This pessimistic observation is a direct consequence of the problems of intervention in Libya.

The recognition given to the concept of R2P in 2005 was, as Professor Nanda notes, a momentous achievement. The concept itself reworks in a more positive manner the approach of several jurists1 who advocated the idea of a qualified sovereignty in cases that demanded humanitarian intervention – an idea which understandably aroused great suspicion on the part of post-colonial nations and the developing world. R2P may have seemed a more palatable option due to the emphasis on the availability of intervention as a last resort (including a more structured process for encouraging compliance with human rights standards) as well as post conflict solutions. However, these elements, which formed a large part of the lengthy ICISS report,2 were left untouched in the World Summit Outcome Document. The relevant paragraphs3 were undoubtedly the product of a compromise in which R2P suffered in its association with the controversial, unilateral notion of humanitarian intervention. The clear focus of the delegates, therefore, was to restrict R2P to Security Council authorised action.

Although the UN Secretary General, acting through his Special Representative on R2P,4 has provided valuable guidance and elucidation of R2P,5 it is important to remember that this does not represent the state of international law on the subject. The report has not been endorsed by the General Assembly, indeed, the GA 6th (Legal) Committee remains divided on the proper scope of R2P and its use.

Authorisation of the use of force in an R2P scenario could be considered controversial, but it submitted that such action falls within the tendency of the Security Council to broaden its mandate since the early 1990’s. From this perspective, the affirmation of R2P in the World Summit Outcome Document is merely confirmation that the Security Council is permitted to view a wholly internal, R2P situation as a threat to international peace and security, thus allowing it to legitimately respond under Chapter VII. In UNSC Resolution 1973, it would appear that this is exactly what occurred. Whether NATO, in acting pursuant to that Resolution, has exceeded its mandate is a difficult question which will not be pursued here – but what is clear is that when a mandate is phrased in functional terms such as ‘protection of civilians’, the contours of that authorisation will prove controversial. The emphasis placed on authorisation rather than the content of R2P has lead to its destruction as a credible mechanism. In invoking an R2P concept that lacked clear agreed content, the door was opened to criticisms of mission creep. When such criticism comes from Permanent Members of the Security Council, it would appear that R2P in its current form was a one off magic bullet. It took great efforts to secure UNSC Resolution 1973 – efforts that will likely be in vain in future situations due to the Libyan experience and the negative reactions of P5 members.6

What, then, is the future of R2P? One solution would be to have a clearly defined concept which, when invoked, would leave less room for interpretative differences, at least in terms of the basic mission. This might then give the members of the Security Council renewed confidence to invoke it. However, the difficulties in agreeing anything in the 6th Committee, the lack of positive response to the Secretary General’s understanding of R2P, and the failure of the World Summit Outcome Document to adopt more than a few lines of the ICISS report indicate that such hopes may well be in vain.

The second solution, which might be favourable, is the development of regional arrangements which utilise the concept. Art 4(h) of the AU Constitution provides a prime example of such a position.7 However, it is also illustrative of the problems with this approach, in that the required approval was not given in the case of Libya, leading perhaps to the conclusion that regional arrangements might be more illusory than real. In addition, there remains the issue of whether such authorisation is compatible with the prohibition on the use of force, often invoked as a norm of ius cogens.8

The third, most realistic, and most undesirable option is that R2P will continue to be invoked on a unilateral or multilateral basis outside of the Security Council. The reaction of states to the NATO intervention in Kosovo suggests that such an approach is not permitted under international law, and their insistence on Security Council authorisation in the World Summit Outcome Document supports this view. In taking that step, states emphasised their worries about imperialist ambition and state supported regime change. The irony is that the Libyan campaign, the greatest success of R2P, is also its greatest failure. The scenarios which the contributors to the World Summit sought so hard to avoid have been made more likely by their unfinished and imperfect solution.

For a recent and I would argue, persuasive article to the effect that the prohibition on the use of force is not a norm of ius cogens, see Green, Questioning the Peremptory Status of the Prohibition of the Use of Force (2011) 32 Michigan Journal of International Law 215-255. ↩

The recent uprisings which toppled Ben Ali in Tunisia and Mubarak in Egypt spread fast throughout the Middle East and North Africa. They overtook Libya, as well. Inspired by the revolutions in Tunisia and Egypt, protesters and demonstrators filled the streets in several Libyan cities. Qaddafi called those opposing his brutally repressive regime, “cockroaches” and “rats” who did not deserve to live, and his bloodthirsty forces, including mercenaries, indiscriminately executed any suspected rebel. The UN Security Council invoked for the first time ever the “Responsibility to Protect” (R2P), an emerging new norm of international law.

Condemning the violence and use of force by the Libyan government against civilians and welcoming the similar early condemnation by the Arab League, the African Union and the Secretary-General of the Organization of Islamic Conference, the UN Security Council adopted a resolution on February 26, 2011, demanding an immediate end to the violence, and urging the Libyan authorities to act “with the utmost restraint, respect human rights and international humanitarian law.” It also decided to refer the situation to the International Criminal Court and imposed sanctions on Libya, including an arms embargo, a travel ban against 16 named Libyan government officials, including Qaddafi, his sons and daughter, and freezing the Qaddafi family assets.

Libyans celebrate their freedom

As the Libyan situation worsened and Qaddafi continued his brutal oppression in defiance of the Security Council’s resolution, the Council adopted Resolution 1973 on March 17, 2011, authorizing member states “to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack.” It also established a no-fly zone and further strengthened the sanctions imposed in the earlier resolution. Subsequently, on June 27, the International Criminal Court issued warrants of arrest for Qaddafi, one of his sons, and Libya’s intelligence chief, on charges of crimes against humanity (murder and persecution) committed through the state apparatus and security forces. Since Libya is not a party to the Rome Statute that created the Court, it is subject to the ICC’s jurisdiction through the UN Security Council resolution.

Pursuant to the call in Resolution 1973 authorizing Member States “to take all necessary measures . . . to protect civilians,” NATO soon began its air campaign against Qaddafi’s forces. The context was the imminent attack on Benghazi by Qaddafi’s forces and the feared resulting massacre.

After six months of NATO’s assistance to the rebels, the new NATO-backed and internationally recognized administration, the Libyan National Transitional Council (NTC), was established in Tripoli. The United States and more than 80 countries have recognized the NTC as the legitimate government of Libya, which has also replaced the old Qaddafi regime at the UN. The interim Libyan government has received part of Libya’s frozen assets and it is receiving political, technical and economic assistance toward the challenging task of rebuilding the country after 42 years of abuse under the Qaddafi regime.

The “responsibility to protect,” the new norm invoked against Libya, is a promising development. It should be recalled that the international community was a silent observer witnessing the killing fields of Cambodia. And the genocide in Rwanda, the Srebrenica massacre and other mass atrocities prompted then-Secretary-General Kofi Annan to seek effective measures for “swift and decisive action” to prevent genocidal actions and to mount an appropriate response.

The Canada-based International Commission on Intervention and State Sovereignty’s report, “Responsibility to Protect,” was the basis of subsequent discussions in the UN. Eventually, in September 2005, the UN World Summit of Heads of State and Government adopted in its World Summit Outcome Document the core elements of R2P. The basic element of the concept is that the state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity, as well as their incitement. The world leaders added that when peaceful means are inadequate and national authorities are “manifestly failing” to protect their populations from these crimes, they are prepared to act collectively, “in a timely and decisive manner,” through the Security Council, in accordance with the Charter and on a case-by-case basis.

After 2005, the Security Council referred to the R2P concept in two resolutions prior to its action in Libya. Ban Ki Moon, the current Secretary General, has outlined the three pillars of R2P: 1) the responsibility of the state to protect its population from these crimes; 2) international assistance and capacity building in states so that they can provide that protection; and 3) timely and decisive response when a state is “manifestly failing” to protect its population. The General Assembly has been discussing the concept in order to explore effective means to operationalize it.

NATO’s action in Libya has come under scrutiny and criticism. Its mandate to protect the civilian population in Libya has, critics assert, been stretched to changing the regime. Why has R2P been invoked to support military action in Libya and not in Syria, they ask. Time will tell whether NATO by overstepping its mandate in Libya may have damaged the concept. In any event, much more needs to be done to ensure that the concept is operationalized by setting standards to determine when military action is appropriate. R2P is a work in progress, but it is undeniable that the concept is a monumental step forward.